IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JEREMY J. HARVEY, 

Petitioner, CASE NO. 2:13-CV-363

 CRIM. NO. 2:12-CR-011(1)

v. JUDGE PETER C. ECONOMUS

Magistrate Judge Kemp

UNITED STATES OF AMERICA, 

Respondent.

REPORT AND RECOMMENDATION

Petitioner, Jeremy J. Harvey, filed this motion to vacate under 28 U.S.C. §2255 after

he was sentenced to 70 months of imprisonment and ten years of supervised release on a

charge of receipt of visual depictions of child pornography. Petitioner pleaded guilty to

that charge. 

Under Rule 4 of the Rules Governing Section 2255 proceedings in the United States

District Courts, the Court is required to review the petition before ordering the United

States to respond to determine if “it plainly appears from the motion ... that the moving

party is not entitled to relief....” If it does so appear, the Court “must dismiss the motion

....” In his motion, petitioner claims (1) that the Court lacked jurisdiction over his crime

because it was purely intrastate in nature; (2) that the statutory sections under which he

was convicted, 18 U.S.C. §§2252(a)(2) and (b)(1), are unconstitutional; (3) that his sentence

was excessive and unreasonable; and (4) his post-release conditions are excessive and raise

double jeopardy concerns. For the following reasons, the Court recommends that the

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motion to vacate be DENIED because it is plain that petitioner is not entitled to relief.

I. PROCEDURAL HISTORY

On October 31, 2011, the United States filed a criminal complaint charging petitioner

with receipt of child pornography, a violation of 18 U.S.C. §2252(a)(2). The affidavit

attached to the complaint stated that a task force officer, posing as the foster father of

juvenile girls, responded to an ad that petitioner had placed on Craigslist.com seeking

others to view pornography with him. Email exchanges ultimately led to an agreement

that petitioner would meet the officer and bring with him a flashdrive containing child

pornography. The meeting took place as arranged and petitioner was arrested with the

flashdrive in hand. It did, indeed, contain images of child pornography, and that led to the

charge in the complaint.

After his arrest, petitioner was detained pending trial, but he did not ultimately 

proceed to trial. Rather, he signed a plea agreement on December 30, 2011. In exchange

for his plea of guilty to a one-count information charging him violating 18 U.S.C.

§§2252(a)(2) and (b)(1) by receiving visual depictions of minors engaged in sexually explicit

conduct “using a means or facility of interstate or foreign commerce,” the United States

agreed not to press other charges against him and agreed that he had accepted

responsibility for the offense. At a plea hearing held on February 1, 2012, petitioner

entered a guilty plea to the information. He was sentenced on May 16, 2012 to the low end

of the guideline range, which was 70 to 87 months. His counsel’s argument for a lesser

sentence (the five-year mandatory minimum) was not accepted by the Court. Petitioner

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did not appeal. He has timely filed this §2255 proceeding.

II. THE MOTION TO VACATE

As noted, petitioner raises four claim in his motion to vacate, two relating to the

constitutionality of the statutes involved in this case, and two relating to his sentence. 

None of them were raised on appeal because he did not take an appeal from the Court’s

order of judgment and conviction. In response to a question on the form §2255 motion

asking why these issues were not raised on appeal, petitioner states that “[n]o reason is

needed for jurisdiction or constitutionality. It is unknown why counsel did not raise these. 

Perhaps he was unaware of them. They should have though.” See Motion to Vacate, Doc.

31, ¶13. The primary problem with petitioner’s claims (although by no means the only one)

is that by virtue of his guilty plea and his failure to appeal, he has waived most issues for

purposes of collateral attack by way of a motion filed under 28 U.S.C. §2255. The Court

explains why in the following section.

 III. ANALYSIS

Ordinarily, any claim relating to the validity of either a guilty plea or sentence must

be raised on direct appeal, or that claim is waived. 

Habeas review is an extraordinary remedy and “ ‘will not be allowed to do

service for an appeal.’ ” Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 2300,

129 L.Ed.2d 277 (1994) (quoting Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588,

1590-1591, 91 L.Ed. 1982 (1947)). Indeed, “the concern with finality served by

the limitation on collateral attack has special force with respect to convictions

based on guilty pleas.” United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct.

2085, 2087, 60 L.Ed.2d 634 (1979).

Bousley v. United States, 523 U.S. 614, 621 (1998). 

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Claims which have been defaulted because they were not raised on direct appeal can

be considered on their merits when presented in a §2255 petition only if the defendant can

show “both (1) ‘cause’ excusing his ... procedural default, and (2) ‘actual prejudice’

resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 168

(1982). The primary exception to that rule is “that failure to raise an

ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being

brought in a later, appropriate proceeding under § 2255. “ Massaro v. United States, 538 U.S.

500, 509 (2003). If a claim has been procedurally defaulted and the petitioner is unable to

show “cause and prejudice,” the petitioner may still obtain review of the claim if he can

demonstrate that, due to constitutional error, the trial court proceedings “‘probably

resulted in the conviction of one who is actually innocent.’” See Bousley v. United States,

supra, at 623, quoting Murray v. Carrier, 477 U.S. 478, 496 (1986). To make that showing, the

petitioner must demonstrate that “‘it is more likely than not that no reasonable juror would

have convicted him.’” Bousley, supra, quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995). 

The failure to appeal is not the only waiver of claims which occurs when a

defendant pleads guilty. The guilty plea itself constitutes a break in the chain of events

leading up to it. Tollett v. Henderson, 411 U.S. 258 (1973). Federal habeas corpus review of

claims raised by a petitioner who has entered a guilty plea is limited to “the nature of the

advice and the voluntariness of the plea, not the existence as such of an antecedent

constitutional infirmity.” Tollett, 411 U.S. at 266. A guilty plea bars a defendant from raising

in federal habeas corpus such claims as the defendant's right to trial and the right to test

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the state's case against him. McMann v. Richardson, 397 U.S. 759 (1970); McCarthy v. United

States, 394 U.S. 459, 466 (1969). 

Here, petitioner’s third and fourth claims concerning his prison sentence and the

terms of his supervised release were waived by his failure to raise them on appeal. The

Court of Appeals has held that “nonconstitutional claims not raised at trial or on direct

appeal are waived for collateral review except where the errors amount to something akin

to a denial of due process.” Grant v. United States, 72 F.3d 503, 505 (6th Cir. 1996). Thus,

“there are three types of issues that a section 2255 motion can not raise: (1) issues that were

raised on direct appeal, absent a showing of changed circumstances; (2) nonconstitutional

issues that could have been but were not raised on direct appeal; and (3) constitutional

issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates

cause for the procedural default as well as actual prejudice from the failure to appeal.” 

Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds Castellanos

v. United States, 26 F.3d 717 (7th Cir. 1994). The claim that a sentence was unreasonable or

excessive, but not unconstitutional, falls within these three categories. See Grant ,supra

(“mistakes in the application of the sentencing guidelines, will rarely, if ever, warrant relief

from the consequences of waiver”).

Petitioner also appears to argue that some portions of his sentence was

unconstitutional, however, because they represent cruel and unusual punishment in

violation of the Eighth Amendment. He asserts that any prison sentence in excess of 18

months “is obviously grossly disproportionate to the crime charged.” See Motion to

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Vacate, at 9. He also asserts that the length and certain terms of his supervised release are

“unreasonable under 18 U.S.C. §3553(a) and the 8th Amendment.” Id. at 10. 

These claims, too, have been waived by the failure to appeal; they fall within the

third category of claims described by the Belford court, i.e. constitutional claims which

should have been, but were not, raised on appeal. Other courts have held that the failure

to appeal a sentence is a waiver even of an Eighth Amendment claim. See, e.g., Madsen v.

United States, 2012 WL 4882297, *5 (D. Utah Oct. 15, 2012)(“Petitioner did not raise her

disproportionality argument at sentencing and, as stated, she did not pursue direct appeal.

As a result, she may not raise this claim in her § 2255 motion”); United States v. Austin, 2010

WL 1050184, *1 (N.D. Ill. March 12, 2010)(a claim that a defendant’s “sentence was grossly

disproportionate and a violation of the Eighth Amendment's prohibition against cruel and

unusual punishment” was waived because “[c]ontentions that a defendant could have but

failed to raise on direct appeal are considered procedurally defaulted ...”). This Court

agrees.

As noted above, however, a claim that is otherwise procedurally defaulted can be

considered on its merits if there is “cause” for the failure to raise it, and “prejudice”

resulting from that failure. United States v. Frady, supra. Here, although petitioner does not

directly argue that he received ineffective assistance of counsel, he does suggest that his

attorney should have raised these arguments in some fashion. The only way the claims

could have been preserved, however, is by direct appeal, and he does not argue that he

asked counsel to appeal. Nonetheless, the Court will consider whether there is any

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possibility that these two sentencing claims are claims which should have been raised on

appeal by counsel, or, stated the other way, whether counsel was constitutionally

ineffective by failing to pursue the claims on appeal.

The right to counsel guaranteed by the Sixth Amendment is the right to the effective

assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The standard

for demonstrating a claim of ineffective assistance of counsel is composed of two parts:

First, the defendant must show that counsel's performance was deficient.

This requires showing that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that deficient performance

prejudiced the defense. This requires showing that counsel's errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is

reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984).. Scrutiny of defense counsel's

performance must be “highly deferential.” Id. at 689.

With respect to the first prong of the Strickland test, “[b]ecause of the difficulties

inherent in making the evaluation, a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional assistance.” Id . To

establish the second prong of the Strickland test, prejudice, a petitioner must demonstrate

that there is a reasonable probability that, but for counsel's errors, the result of the

proceedings would have been different. Id. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. Because Petitioner must

satisfy both prongs of the Strickland test to demonstrate ineffective assistance of counsel,

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should the court determine that Petitioner has failed to satisfy one prong, it need not

consider the other. Id. at 697. 

The Strickland test applies to appellate counsel. Burger v. Kemp, 483 U.S. 776, 781–82

(1987). When the claimed deficiency in counsel’s performance is failure to file an appeal, 

but there is no evidence that the defendant requested that an appeal be taken, counsel’s

performance is constitutionally suspect only “when there is reason to think either (1) that

a rational defendant would want to appeal (for example, because there are nonfrivolous

grounds for appeal), or (2) that this particular defendant reasonably demonstrated to

counsel that he was interested in appealing.” Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). 

Given that petitioner does not claim that he indicated in any way a desire to appeal, he may

establish ineffective assistance of counsel as cause to excuse his failure to raise grounds

three and four on appeal only by showing that there was some reason to think, in this case,

that there was some nonfrivolous issue which could have been raised on appeal. 

Here, there is no reason to think that is the case. In order for a defendant to make

out a claim under the Eighth Amendment, the Court of Appeals has explained that 

[t]he Eighth Amendment provides: “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.

Const. amend. VIII.... [T]he Supreme Court has interpreted the Eighth

Amendment to contain a “narrow proportionality principle.” Harmelin v.

Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy,

J., concurring); United States v. Layne, 324 F.3d 464, 474 (6th Cir.2003). But that

interpretation “does not require strict proportionality between crime and

sentence.” Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680 (Kennedy, J., concurring)

(citing Solem v. Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983));

see also Rummel v. Estelle, 445 U.S. 263, 271, 100 S.Ct. 1133, 63 L.Ed.2d 382

(1980) (Eighth Amendment “prohibits imposition of a sentence that is grossly

disproportionate to the severity of the crime”)....

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United States v. Moore, 643 F.3d 451, 454 (6th Cir. 2011). 

To illustrate how narrow this proportionality principle is, the Court of Appeals

stated, in United States v. Williams 15 F.3d 1356, 1364 (6th Cir. 1994), and has consistently

reaffirmed, that “[g]enerally, a sentence within statutory limitations does not violate the

Eighth Amendment.” See also United States v. Layne, 324 F.3d 464, 474 (6th Cir. 2003); Austin

v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000). Petitioner’s 70-month sentence is certainly

within the statutory range of five to twenty years, and at the low end of that range. 

Further, in an unpublished opinion, the Court of Appeals rejected a defendant’s challenge

to a ten-year sentence (which was the statutory minimum sentence in that case because the

defendant had a prior similar conviction) imposed under a different child pornography

statute, 18 U.S.C. §2252A, holding that “a ten-year sentence for this kind of crime is neither

unusual nor disproportionate to the underlying offense.” United States v. McIntosh, 414

Fed. Appx. 840, 841 (6th Cir. March 17, 2011). The McIntosh court noted that many other

courts of appeals had upheld similar sentences under that statute, but it also cited to a case

rejecting an Eighth Amendment challenge to §2252's 15-year mandatory minimum sentence

for receipt of child pornography. See id. at 841-42, citing United States v. Weis, 487 F.3d 1148

(8th Cir. 2007). 

There does not appear to be any law which would support an argument that a 70-

month sentence for violating this statute is unconstitutional. The only case where a court

has found an Eighth Amendment violation for a sentence imposed under §2252 appears

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to be United States v. C.R., 792 F.Supp. 2d 343 (E.D.N.Y. 2011), but that case is significantly

different from this one because the defendant in that case was young and had a difficult

family history and a long history of substance abuse. Moreover, it is not reasonable to

assume that even if C.R. had some persuasive value, the Court of Appeals for this Circuit

would follow it. The Court cannot find either that an attorney who failed to advise

petitioner to appeal on these grounds, which lack any substantial support, was

constitutionally ineffective, or that petitioner was prejudiced by the failure to appeal. It

simply cannot be said that, if such an appeal had been filed, petitioner would likely receive

a different sentence. 

Much the same is true with respect to the conditions of supervised release. Courts

have upheld even life terms of supervised release for sex offenders or persons who receive

child pornography as valid under the Eighth Amendment. See, e.g., United States v.

Underwood, 2012 WL 6621462 (3d Cir. December 19, 2012); United States v. Williams, 636 F.3d

1229 (9th Cir. 2011); United States v. Moriarity, 429 F.3d 1012 (11th Cir. 2005). The ten-year 

term of supervised release imposed in this case is well within the statutory range, which

means it is generally immune from an Eighth Amendment attack. Again, absent any

indication that petitioner requested his counsel to appeal this aspect of his sentence, in

order to find that counsel was ineffective, the Court would have to conclude that no

reasonable attorney would have foregone an appeal - which, given the complete absence

of any supporting case law, is a conclusion the Court cannot reach - and that the failure to

appeal prejudiced petitioner. The Court simply cannot make such findings, and

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petitioner’s procedural default of his Eighth Amendment claims cannot be excused by

means of an assertion of ineffective assistance of counsel.

 Petitioner’s first and second claims attack the constitutionality of the statute under

which he was convicted. Briefly summarized, his argument is that the mere possession of

child pornography is neither economic activity nor one which has any connection with

interstate commerce, and that all of his conduct - as he puts it, “meeting with someone in

his state to view their collection” and to meet “two ‘fictitious’ daughters, which he was

apprehensive to meet,” was “purely intrastate criminal behavior” which cannot be

punished by the federal government. See Motion to Vacate, Doc. 31, at PAGEID #76. He

does not appear to claim that his counsel was ineffective for failing to raise these issues on

appeal, and he asserts that there is no requirement to raise jurisdictional grounds at any

earlier time in order to preserve the claim for purposes of a motion to vacate filed under

§2255.

Petitioner is incorrect about the effect of his guilty plea on this type of claim. In

United States v. Corp, 668 F.3d 379, 384 (6th Cir. 2012), the Court of Appeals, quoting its

earlier decision in United States v. Martin, 526 F.3d 926, 932 (6th Cir. 2008), held that “[t]o

assert a jurisdictional challenge successfully, ‘a defendant who enters a guilty plea must

establish that the face of the indictment failed to charge the elements of a federal offense.’”

In that case, the Court of Appeals noted that in United States v. Studabaker, 578 F.3d 423 (6th

Cir. 2009)(a §2252A child pornography case), it had “determined that, in spite of the

defendant's attempt to characterize his claim as impacting our jurisdiction, the

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interstate-commerce argument actually presented a non-jurisdictional issue.” Id. at 385. 

The Court of Appeals also rejected the defendant’s attempt to change his claim to one

attacking the facial validity of the charges, observing that “[t]he felony information

unambiguously lists all of the elements required for conviction” including the use of

materials which traveled in interstate commerce. It also noted that the defendant admitted

to such allegations at the plea hearing. Id.

Here, petitioner does not argue that the Information filed in this case lacks

allegations concerning interstate commerce, nor could he; it states that he received visual

depictions of child pornography “using a means or facility of interstate or foreign

commerce, or that has been mailed, or had been shipped or transported in or affecting

interstate or foreign commerce, or which contained materials which had been mailed or so

shipped or transported by any means including by computer ....” See Doc. 11. Thus, in

accordance with United States v. Corp, supra, this Court finds his “jurisdictional” challenge

to the face of the indictment to have been waived.

Further, the record of this case supports a finding that petitioner’s activities occurred

through a means of interstate commerce, i.e. the internet. At his plea hearing, petitioner

listened as a statement of facts about the crime was read into the record. Among other

things, the Assistant United States Attorney, Michael Hunter, who read the statement,

alleged that petitioner had approximately 80 images of child pornography either on his

computer or on a flash drive. Mr. Hunter also stated that “Mr. Harvey does not contest

that he received these images by downloading them using a facility of interstate commerce,

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that is, the Internet.” See Trancsript, Doc. 33, at 21. Petitioner acknowledged on the record

that he agreed with these statements and said that what Mr. Hunter stated was correct. Id. 

Under these circumstances, no successful factual challenge to the jurisdictional element of

this crime can be made, even if such a challenge had not been waived.

By virtue of petitioner’s admitted use of the internet, the United States established,

in this case, that the crime petitioner pleaded guilty to was within Congress’ power to

regulate. Just recently, the Court of Appeals affirmed Congress’ broad authority under the

Commerce Clause to regulate even the intrastate production of child pornography because 

“Congress has the power to regulate purely local activities that are part of an economic

class of activities that have a substantial effect on interstate commerce....” United States v.

Rose, __ F.3d. __, 2013 WL 1664697, *7 (6th Cir. April 18, 2013). It had previously held that

§2252 is constitutional on its face based on its reference to images which traveled in

interstate or foreign commerce. See, e.g., United States v. Halter, 259 Fed. Appx. 738 (6th Cir.

Jan 7, 2008), citing United States v. Corp., supra. Thus, there is simply no merit to any of

petitioner’s jurisdictional claims in this case, or to his assertion that the receipt of child

pornography through the internet is wholly intrastate activity which is beyond the reach

of the federal government to regulate or criminalize.

 IV. RECOMMENDATION

For the reasons set forth above, it is recommended that petitioner’s motion to vacate,

correct or set aside sentence (Doc. 31) be DENIED. 

V. PROCEDURE ON OBJECTIONS

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If any party objects to this Report and Recommendation, that party may, within

fourteen days of the date of this Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which objection is made, together

with supporting authority for the objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper objections, a judge of this

Court may accept, reject, or modify, in whole or in part, the findings or recommendations

made herein, may receive further evidence or may recommit this matter to the magistrate

judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a waiver of the right to appeal

the decision of the District Court adopting the Report and Recommendation. See Thomas

v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

 /s/ Terence P. Kemp 

 United States Magistrate Judge

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